Jordan v. New Amsterdam Casualty Co. , 378 S.W.2d 890 ( 1964 )

WERLEIN Justice.

This is an appeal from a summary judgment for appellee in a suit brought and prosecuted both as a bill of review to set aside a former judgment rendered in a workmen’s compensation case and as an independent suit for change in appellant’s physical condition.

Appellant sustained an accidental injury on September 12, 1957 allegedly consisting of a ruptured disc between the fourth and fifth lumbar vertebrae, and recovered a judgment in Cause No. 517,127 in the District Court of Harris County against ap-pellee on July 25, 1960 for 55 weeks total incapacity at $35.00 per week and 75 weeks temporary partial incapacity at the rate of $29.07 per week, based on the jury verdict returned into court on October 21, 1959. Prior to the trial of said cause he had undergone an operation for such condition. After said judgment was entered and while appellant’s motion for a new trial was pending, a second operation was performed on his back at the same location. This second operation was pleaded in said cause as newly discovered evidence in appellant’s amended motion for new trial. The trial court denied the motion for a new trial and the case was appealed to the Court of Civil Appeals which reversed the trial court (353 S.W.2d 256). The Supreme Court, on June 20, 1962, reversed the Court of Civil Appeals and affirmed the trial court. See New Amsterdam Casualty Company v. Jordan, Tex., 359 S.W.2d 864.

Thereafter on September 20, 1962 appellant had to undergo a third operation, known as a spinal thalamic tractotomy (chordotomy), which involved the upper portion of the spine beginning at the base of the neck. This operation was at a totally different part of appellant’s back. It was never pleaded or considered in any of the prior court proceedings. Appellant filed this suit on December 10, 1962, alleging that the judgment of July 25, 1960 was manifestly wrong, unjust and based upon false testimony of doctors at the trial to the effect that he did not need any further surgery. He also alleged that such judgment was due to fraud, accident, or mistake, without negligence on his part, and further that there had been a material change in his physical condition since the trial.

We have carefully examined appellant’s pleading and have concluded that the court properly granted appellee’s motion for summary judgment. Appellant has not pleaded nor shown by his exhibits attached to his pleading any ground entitling him to a hill of review and judgment setting aside the judgment of July 25, 1960. The fraud, accident or mistake which he relies upon are alleged to be the medical testimony given on the trial of the case to the effect that appellant would need no further surgery, which testimony appellant says was false and kept him and his attorney from knowing or showing his true physical condition which existed or which might develop in the future.

The testimony of the doctors consisted of expressions of opinion given at the trial of said Cause No. 517,127. If such doctors falsely testified to opinions they did not entertain, their testimony would constitute no more than intrinsic fraud. Appellee’s witness, Dr. Price, when asked whether he had an opinion as to any indication that appellant needed any kind of an operation, testified: “He does not, he is far better than an operation could make him.” Appellant’s own witness, Dr. Emory Ray King; Jr., who performed the first operation on appellant, when asked whether he felt that Mr. Jordan might require any surgery in the future to help his present disability, testified: “I don’t believe surgery would benefit him any, if I did, I would have recommended it quite a while ago.”

The law is well established in this State that to entitle a litigant to set aside a final judgment upon a bill of review, he must prove a meritorious cause of action or defense, which he was prevented from presenting because of the fraud, accident or wrongful act of the opposite party, unmixed with any fault or wrongful act on his part. Alexander v. Hagedorn, 1950, 148 Tex. 565, 226 S.W.2d 996; Garcia v. Ramos, Tex.Civ.App., 208 S.W.2d 111, writ ref. In Crouch v. McGaw, 1940, 134 Tex. 633, 138 S.W.2d 94, the court said:

“Fraud is classified as intrinsic or extrinsic. Included in the term ‘intrinsic fraud’ are false testimony, fraudulent instruments, and any fraudulent matter that was presented and considered in rendering judgment. Intrinsic fraud does not furnish a ground, in an independent suit brought for that purpose, for setting aside a judgment. Fraud must be extrinsic to justify the setting aside of a judgment, and must be collateral to the matter tried, and not something which was actually or potentially in issue in the trial; unless the presentation of such defense was prevented by fraud, accident, or act of the opposing party, without fault or negligence of the party against whom the judgment was rendered.”

In the present case appellant is relying upon alleged false testimony at the trial of Cause No. 517,127 as a ground for setting aside the final judgment rendered in such cause. He even asserts he was prevented by his own doctor’s testimony from showing his true condition, thus overlooking the well-established requirement that the fraud or wrongful act be that of the adverse party. It is clear that appellant has failed to plead any facts or circumstances showing extrinsic fraud which prevented him from proving up his case. Appellant’s injuries and physical condition were in issue in the trial of said cause.

Appellant asserts, however, that subsequent to said judgment being entered and becoming final, there has been a change in his physical condition for the worse, and that the trial court erred in holding that it had no jurisdiction to review on equitable grounds a final workmen’s compensation judgment. He urges that he is entitled to relitigate the issue of “material change in. physical condition” and incapacity under the provisions of the Workmen’s Compensation Act, and in particular Section 12d, Article 8306, Vernon’s Annotated Texas Civil Statutes.

The cases cited by appellant are factually inapplicable to the present suit. The law is well settled that Section 12d, Art. 8306, V.A.T.S., authorizing the Industrial Accident Board, on a proper showing regarding a change of conditions, mistake, or fraud at any time within the compensation period, to review the award or order that it had made, does not authorize a review by the court of its final judgment entered in a suit brought to set aside a decision of the Industrial Accident Board. Federal Surety Co. v. Cook, 1930, 119 Tex. 89, 24 S.W.2d 394. See also Union Indemnity Co. v. Drake, Tex.Civ.App., 42 S.W.2d 839, writ ref..; United States Fidelity & Guaranty Co. v. Brandon, Tex.Civ.App., 31 S.W.2d 846; Globe Indemnity Co. v. McClurg, Tex.Civ.App., 38 S.W.2d 125, error dism.; Pate v. Security Union Ins. Co., Tex.Civ.App., 54 S.W.2d 355.

Judgment of the trial court affirmed.